There was an auto accident in Dallas; plaintiffs sued Volkswagen in Marshall, Texas, in the notoriously plaintiff-friendly Eastern District of Texas, which has a hugely abnormal number of product liability cases—17% of all federal automobile product liability lawsuits in the United States. Let us quote from In re Volkswagen of America, Inc., 506 F.3d 376 (5th Cir.2007), earlier discussed on POL Nov. 27 and Feb. 23:

Volkswagen moved to transfer venue to the Dallas Division of the Northern District of Texas (”Dallas Division”). Volkswagen asserted that a transfer was warranted as (1) the Volkswagen Golf was purchased in Dallas County, Texas; (2) the accident occurred on a freeway in Dallas, Texas; (3) Dallas residents witnessed the accident; (4) Dallas police and paramedics responded and took action; (5) a Dallas doctor performed the autopsy; (6) the third-party defendant lives in Dallas County, Texas; (7) none of the plaintiffs live in the Marshall Division; (8) no known party or significant non-party witness lives in the Marshall Division; and (9) none of the facts giving rise to this suit occurred in the Marshall Division.

The district court refused to transfer to the Northern District, VW sought mandamus, and got it on the second try, with the Fifth Circuit ordering transfer. (See also John Council, “5th Circuit Restricts Trial Courts’ Discretion in Venue Motions”, Texas Lawyer, Nov. 5; John Council, “5th Circuit Case Could Reduce Product Liability Caseload in Texas’ Eastern District”, Texas Lawyer, Aug. 7).

In February, however, the Fifth Circuit vacated the decision, and granted en banc rehearing. Argument is Thursday in New Orleans, and the decision will determine whether the Fifth Circuit will tolerate forum shopping in the federal courts. (Michelle Massey, “Appeals court scheduled to hear arguments over forum shopping”, SE Texas Record, May 20). The case is of special importance to the patent bar, given the fact that Marshall, Texas, has become the unlikely capital of United States patent litigation. Blog coverage: PatentlyO, Prior Art.

En banc briefs in 07-40058, In re Volkswagen AG:

• Petitioners (Volkswagen)
• Respondents (plaintiffs)
• Product Liability Advisory Council, amicus on behalf of petitioners
• American Intellectual Property Law Association, amicus on behalf of petitioners
• Railroads, amicus on behalf of petitioners
• Law professors, amicus on behalf of respondents
• Trial lawyers, amicus on behalf of respondents

Department of Strangely Shifting Academic Positions: In December 2007, law professor Georgene Vairo wrote a LexisNexis Expert Commentary on the Volkswagen case explaining its consistency with Supreme Court precedents, and writing

The Fifth Circuit is not alone in permitting the use of mandamus in limited circumstances. For example, in Lemon v. Druffel, 253 F.2d 680 (6th Cir. 1958), a case decided shortly after Congress codified § 1404(a), the Sixth Circuit ruled that mandamus was an appropriate remedy to test a district court’s discretion on a motion to transfer.

In April 2008, she signed on to a brief taking precisely the opposite position, which does not cite Lemon. Curious.

Overlawyered has more on the Eastern District of Texas, and on Judge T. John Ward.

Just as I was about to say I needed to revise my top-ten blog list to include the excellent anony-blogger Patent Troll-Tracker, I learned from today’s Recorder and WSJ that he has revealed himself as Rick Frenkel, Cisco IP attorney.

When I started the blog, I did so mainly out of frustration. I was shocked to learn that a huge portion of the tech industry’s patent disputes were with companies that were shells, with little cash and assets other than patents and a desire to litigate, and did not make and had never made any products. Yet when I would search the Internet for information about these putative licensors, I could find nothing. I was frustrated by the lack of information, and also by the vast array of anti-patent-reform bloggers out there, without a voice supporting what I did believe and still believe is meaningful reform.

(For the record, I liked the blog even before they praised me.) Plaintiffs’ attorney Ray Niro had put a bounty on the identity of the Troll Tracker, who had been critical of Niro’s tactics (as have Walter and I). Frenkel is considering shutting down his blog now that he is out of the closet; one hopes someone else picks up the torch, because he was performing a valuable service, to the extent that I had limited my blogging about it because he had the subject-area covered so well.

I missed the debate in November among Dennis Crouch, Michael Smith, and Frenkel on whether the Eastern District of Texas is “waning” as a magnet jurisdiction for patent plaintiffs (May 2006, Dec. 2005, Jan. 2005), or I might have made reference to it in my latest Liability Outlook on patent reform. Frenkel seems to have the best of that debate, and follows up:

Let’s highlight one really outstanding statistic from November: The number of defendants sued in the Eastern District of Texas in November 2007: 244. The number of defendants sued in Los Angeles, San Francisco/Silicon Valley, New York City, Chicago, Delaware, and New Jersey combined in November 2007: 162.

Patent lawyers often seem to be of a different stripe than other lawyers, and there is a similar patent-law-blogging community largely separate from the other law-bloggers. The commenters go mad at Crouch’s blog over the Frenkel revelation because Cisco is a strong patent reform supporter. Elsewhere: IPBiz; TechDailyDose; NetworkWorld; 271Blog; Mises Blog; and the anti-reform Patent Prospector.

My latest Liability Outlook is on the Patent Reform Act of 2007:

Despite some in the media calling patent reform dead, on January 24, 2008, the Senate placed S. 1145, the Patent Reform Act of 2007, on the general calendar. The next few weeks will be critical to the legislation, which the House passed in September. Although much of the discussion has focused on the different perspectives and concerns that the high tech and the biotech/pharma industries have about the legislation, the fact remains that the patent litigation system is broken. Congress should make every effort to fix it by writing into this legislation reasonable formulas for damage awards and venue rules that discourage forum-shopping. …

Affiliates of Erich Spangenberg’s Plutus IP have sued 476 different defendants in 42 lawsuits. The vast majority of those lawsuits allege infringements of patents that Plutus IP purchased for $1,000. The use of invalid patents in litigation is more than theoretical. Philip Jackson sued his attorneys, Chicago plaintiffs firm Niro, Scavone, Haller & Niro, for malpractice after his $12.1 million jury verdict against Glenayre Electronics Inc. was reduced to under $3 million; Niro challenged the malpractice suit by claiming that th e patent Jackson had successfully enforced was invalid. In 2006, approximately 6,000 defendants were sued in 2,800 patent cases; in 2007, the six thousand mark was reached in early October, implying a 30 percent increase in patent litigation in a single year. Such litigation stifles substantial technological innovation. Patent trolls claim to block entire fields, and one cannot hope to innovate in these areas without the financial capital to handle the threat of patent litigation. IBM has 370 corporate patent attorneys, not just to avoid the pitfalls of infringement, but to create a patent portfolio that can provide counterclaims (or cross-licensing opportunities) if a commercial entity were to sue them for infringement. Since the late 1990s, patent litigation costs have outstripped patent profits.

All-automotive edition:

• Court won’t unseal settlement arising from $105 million Aramark/Giants Stadium dramshop case for fear girl’s father will try to get his hands on money [NJLJ, NorthJersey.com, Childs; earlier]
• Great moments in insurance defense law: you mean it wasn’t a good idea to infiltrate that church meeting to investigate the crash claim? [Turkewitz first, second posts]
• Columnist Paul Mulshine rejoices: Ninth Circuit decision “if it stands, will lead to the end of the SUV as we know it” [Newark Star-Ledger]
• Is it unfair — and should it be unlawful? — for insurers to settle crash victims’ claims too early? [Maryland Injury Lawyer Blog]
• If Ron Krist prevails in shoot-out of Texas plaintiff titans, he vows to have sheriff seize John O’Quinn’s Batmobile [American Lawyer; see also Ted's take earlier]
• In much-watched case, Australian high court by 3-2 split upholds highway authority against claim defective bridge design was blameworthy after youth’s dive into shallow water [RTA NSW v. Dederer, Aug. 30]
• Redesigning Toyota’s occupant restraint system? Clearly another job for the Marshall, Texas courts [SE Texas Record; Point of Law; more]
• Bench trial results in $55 million verdict against U.S. government after Army employee on business runs red light and paralyzes small child [OC Register]
• Vision in a purple Gremlin: her Yale Law days shaped Hillary in many ways [Stearns/McClatchy]
• Zero tolerance for motorists’ blood-alcohol — are we sure we want to go there? [Harsanyi, Reason]
• Driver falls asleep, so of course Ford must pay [two years ago on Overlawyered; much more on our automotive page]

• Hush up with those jokes, now: Lerach Coughlin lawyer hailed as hero after jumping from his BMW to save pregnant woman attacked by pit bulls [ABA Journal]
• The “murky area between zealous advocacy and improper conduct”: Judge Preska sanctions Cleary Gottlieb for litigation abuse [WSJ Law Blog, Lat]
• Out-nannying them all? Edwards says his health plan will legally oblige everyone to go in for checkups with the doc [AP; MagicStats, Howard, Althouse]
• Apparently we missed out on the Aug. 31 celebration of Love Lawyers Day [Giacalone]
• To settle lawsuit by psychiatrist’s family, Augusten Burroughs agrees to call “Running with Scissors” a “book” rather than “memoir” [Althouse]
• Will contest over Maryland judge’s estate has dragged on for fourteen years [Washington Post]
• Recap of Flea fiasco (doc liveblogging his own trial); we get randomly mentioned [American Medical News; earlier]
• “Viacom charges man with violating his own copyright, after he YouTubed their program that used his video.” [Reynolds](but see: Evan Brown via Coleman]
• Is your lawyer a “chicken catcher” or a “chicken plucker”? [KevinMD]
• When if ever should “best interest” custody standard override parent’s right to free exercise of opinion, religion, cultural affiliation, etc.? [series of Eugene Volokh posts]
• Don’t forget to join our new Facebook group with distinctive content [if you're a member]
• New at Point of Law: Texas judge’s son withdraws from odometer class action; what do environmentalist litigators have against whales?; N.Y. Times’s born-yesterday Vioxx coverage (and this from Ted, which is pretty devastating); Dickie Scruggs takes down an insurance commissioner; sexual assault foreseeable when fraternity left in possession of unsupervised motel room? Marshall, Texas dignitaries rally to save their special court; and much more.

That’s Stephanie Mencimer explaining (Nov. 28) why trial lawyers should buy multiple copies of her forthcoming book, entitled Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue, expressing views antipodal to our own.

Mencimer, a frequent contributor to such journals as Mother Jones and the Washington Monthly (see Jan. 19, 2005), has set up a website (previously noted by Ted) to promote her new book. It’s not unproductive of chuckles, in its way. For example, in one post earlier this month (Nov. 10), criticizing media coverage of patent hellhole Marshall, Texas, she piously avers that reporters should disclose who fed them tips. A fascinating idea! Does this mean she’ll be sure to disclose in her own writings who fed her tips? Or is this new standard only supposed to apply to journalism she disapproves of?

The wildly popular oval “W” stickers sported nationwide by supporters of President Bush’s 2004 re-election bid are at the center of a federal copyright case in Texarkana. This week, a judge set a Nov. 7 trial date.

Jerry Gossett of Wichita Falls claims the stickers are based on his idea, which he copyrighted in 2001. He accuses the Republican National Committee and campaign material maker Spalding Group of stealing his concept after he pitched it to them.”

A plaintiff’s expert has estimated damages at $100 million, defense attorneys said….

Texarkana, where Bill Clinton appointee David Folsom presides as the federal judge, has a reputation as a plaintiff-friendly venue, but Altman [Gossett attorney William Altman of Wichita Falls] said he simply sought a speedy docket.

(Mark Babineck, “Designer of a Bush logo seeks a ‘W’ in courtroom”, Houston Chronicle, Sept. 9).

Peter Lattman explains (Jul. 25). For more on the Best Little Courthouse in Texas, namely the one in Marshall, Tex., see May 12, etc.

Law.com/The Recorder on the movement to curb venue-shopping in intellectual property litigation, a reaction in part to the rise of the plaintiff-friendly little jurisdiction of Marshall, Texas, as noted in our posts of Jan. 14 and Dec. 21, 2005. (Xenia P. Kobylarz, The Recorder, May 9).

Some Texas personal injury lawyers, feeling squeezed by that state’s far-reaching liability reforms, are eager to shift into contingency-fee patent litigation work, especially in the plaintiff-friendly little jurisdiction of Marshall, Texas (see Jan. 14)(Alan Cohen, Law.com/IP Law & Business, Nov. 14).

“In the last several years, patent lawyers have flocked to Marshall, a small northeastern Texas town of 25,000, because of its speedy court process, patent-enthusiastic judges and juries considered ideal for hearing intellectual property cases. This year alone, the court has seen 59 patent cases, more than triple the total in 2003, which saw just 14 patent suits.” Intel made a $150 million payout after adverse rulings by a Marshall judge, and Cisco is currently being sued in what plaintiff’s lawyers hope will be a big-payout case.

Among those who defend the venue against critics is Charles Baker of Houston’s Porter & Hedges, who concedes “that some defense attorneys are afraid to try cases there because of its pro-plaintiff reputation, which he disagrees with. He said that the [court's] rocket docket also turns off some defense lawyers who feel pressured to produce evidence quickly, leaving little time for preparation.” Curiouser and curiouser: “Baker said that Marshall’s large elderly population also provides a good jury pool for intellectual property cases. ‘There are a lot of old people who don’t have a problem with sitting weeks at a time and listening to complicated issues,’ Baker said.” (Tresa Baldas, “Texas IP Rocket Docket Headed for Burnout?”, National Law Journal, Dec. 28)

For a very different view of the reasons for Marshall’s popularity, check out M. Craig Tyler (Wilson Sonsini), “Patent Pirates Search for Texas Treasure”, Texas Lawyer, Sept. 20 (PDF): “Juries in East Texas, unlike those in Houston, Dallas or Austin, are much less likely to have a member with any technical training or education, which exacerbates the problem from the defense perspective, but makes East Texas federal courts an attractive venue for would-be plaintiffs, who know that the jury will, instead, gravitate toward softer or superficial issues that are difficult to predict.” The result is to facilitate the activities of what Tyler calls “patent pirates”: enterprises that exist to file patent suits rather than to manufacture products, and which benefit from asymmetrical costs of litigation (discovery in a patent case can cost the manufacturer-defendant a million dollars or more, while the plaintiff license-holder may have few or no documents worth discovering).

According to Tyler, a “simple, nonspecific complaint”, which need not identify any infringing products sold by the defendant, “has a nuisance value of a few hundred thousand dollars the minute it is filed and served.” Tyler’s outspoken article in turn drew a response: Michael C. Smith, “”Patent Pirates” Only Exist in Neverland”, Texas Lawyer, Oct. 10 (PDF).